(Cite
as: 139 P.3d 581)
Supreme
Court of Alaska.
GILBERT
M., Appellant,
v.
STATE
of Alaska, Appellee.
No.
S-11364.
July
21, 2006.
*583 OPINION
I.
INTRODUCTION
Gilbert
M. appeals the termination of Jan M.'s parental rights to
her daughter-Gilbert's granddaughter-Belinda T.FN1 The state took Belinda from Gilbert's home in 2000 when
he was arrested on felony gun and drug charges.
Jan has not appealed the termination of her parental rights
and Belinda has since been adopted.
Gilbert has been convicted of numerous felonies and is incarcerated
for the foreseeable future.
Gilbert appeals the termination of Jan's rights, asserting that the
superior court applied the wrong evidentiary standard in assessing the
state's active efforts and that the court erred in failing
to obtain testimony from an expert in Native culture.
Gilbert also challenges the superior court's finding that harm would
result if Belinda were to be placed with him and
the superior court's refusal to order Belinda's adoptive parents to
provide Gilbert visitation.
Because Gilbert does not have standing to appeal Jan's rights,
and because the claims which he has standing to appeal
are rendered moot by his lengthy incarceration, we affirm the
judgment of the superior court.
FN1.
We
have used pseudonyms throughout this opinion to protect the privacy
of family members.
II.
FACTS
AND PROCEEDINGS
A.
Facts
Belinda
T. was born in June 1996 to Jan M. and
Henry T. Henry's whereabouts are unknown and state efforts to
locate him have been unsuccessful.
Jan and Belinda are affiliated with the Chitina Traditional Indian
Village and Belinda is an Indian child within the meaning
of the Indian Child Welfare Act (ICWA). FN2
FN2.
25
U.S.C. §
1903(4)
(2000) (defining Indian child for purposes of ICWA as “any
unmarried person who is under the age of eighteen and
is either a) a member of an Indian tribe or
b) is eligible for membership in an Indian tribe and
is the biological child of a member of an Indian
tribe.”).
The
state received three reports of harm to Belinda between 1998
and 2000.
These reports indicated Jan was drinking heavily and using both
crack cocaine and marijuana.
These substance abuse problems interfered with Jan's ability to be
Belinda's caretaker.
Until 2000 Jan often left Belinda in the care of
Gilbert M., Jan's father.
On
September 23, 2000 the Anchorage Police Department raided Gilbert's home
and arrested him.
According to the petition to terminate parental rights, “Police
observed a loaded pistol and bullets in open view at
the residence, and a heavy gun case was removed from
under [Belinda]'s bed.
Police also found multiple bags of marijuana, as well as
money believed to be from the sale of drugs.”
Following a jury trial, Gilbert was convicted of fourteen felonies
and was sentenced to a presumptive twenty-five-year prison term;
Gilbert
faces another six years of imprisonment in a different case.
Gilbert is currently sixty-six years old;
he
will likely be incarcerated for a lengthy period and will
almost certainly be in prison when Belinda reaches the age
of eighteen. FN3
FN3.
Gilbert's
conviction and sentence are not part of the trial court
record in this case but we may take judicial notice
of them under Alaska Evidence Rules 201 and 203.
Moreover, the criminal judgment was included in the appellees' motion
to dismiss Gilbert's appeal as moot.
The
state took Belinda into emergency custody at the time of
Gilbert's arrest.
Jan apparently was living in Nome at the time.
In September 2000 the Division of Family and Youth Services
(DFYS or the division) filed an emergency petition for adjudication
that Belinda was in need of aid and for emergency
placement.
Superior Court Judge Peter A. Michalski granted the petition in
October 2000 and temporarily placed Belinda in state custody.
Gilbert participated in the custody hearing;
the
superior court master stated that “[Gilbert
M.] is an Indian custodian and thereby entitled to party
status”
and the court's order referred to Gilbert as the “maternal
grandfather/Indian custodian.”FN4
FN4.
25
U.S.C. §
1903(6)
(2000) defines Indian custodian as “any
Indian person who has legal custody of an Indian child
under tribal law or custom or under State law or
to whom temporary physical care, custody, and control has been
transferred by the parent of such child.”
*584 On February 14, 2001 the parties to the custody proceeding
entered a stipulation before Superior Court Judge Sharon Gleason to
the effect that Belinda was a child in need of
aid under AS 47.10.011(6) FN5 and (10) FN6 and that return home was not appropriate at the time,
pending Jan's progress on her case plan.
The stipulation included the statement, as part of the basis
for Belinda being a child in need of aid, that
“[t]he
Indian custodian is currently facing criminal prosecution and is not
an appropriate caretaker for the child at this time.”
Gilbert signed the stipulation, as did Jan and the guardian
ad litem.
FN5.
AS
47.10.011(6) provides that a child is in need of aid
if the court finds by a preponderance of the evidence
that:
the
child has suffered substantial physical harm, or there is a
substantial risk that the child will suffer substantial physical harm,
as a result of conduct by or conditions created by
the child's parent, guardian, or custodian or by the failure
of the parent, guardian, or custodian to supervise the child
adequately[.]
FN6.
AS
47.10.011(10) provides, in relevant part, that a child is in
need of aid if:
the
parent, guardian, or custodian's ability to parent has been substantially
impaired by the addictive or habitual use of an intoxicant,
and the addictive or habitual use of the intoxicant has
resulted in a substantial risk of harm to the child.
In
the meantime, Jan began work on her case plan.
She signed the plan on October 10, 2000.
It provided that Jan would pursue alcoholism treatment, would follow
mental health treatment recommendations, and would follow social workers' recommendations
on providing for Belinda's safety.
Jan entered a detox facility on January 19, 2001 but
was discharged on February 27 for assaulting another patient.
She entered another facility on May 15, 2001 but left
two weeks later against treatment advice.
The
guardian ad litem (GAL) for Belinda filed a disposition report
on May 11, 2001.
The report recommended that Belinda continue in foster care while
Jan worked on her case plan and that “once
the mother is settled into residential treatment, the parties may
consider placement of [Belinda] with the mother.”
As to Gilbert, the GAL reported
[Gilbert
M.]
is
an Indian Custodian and expressed a desire to work a
case plan....
The GAL assumes that Mr. [M.] is focusing on resolving
his criminal charges at this point....
In the event that [Jan] does not complete treatment or
relapses, it would be in [Belinda's] best interests for [Gilbert
M.] to work a case plan and be considered as
a future placement for [Belinda].
Jan
successfully completed alcohol treatment from October 16, 2001 to November
21, 2001.
As a result, DFYS decided in January 2002 to proceed
toward reunification, placing Belinda in a foster home in Anchorage.
In May 2002 Jan entered an outpatient aftercare program.
She was discharged against treatment advice on July 25, 2002.
Jan's attendance at the program was sporadic.
At about the same time, in June 2002, Jan apparently
relapsed into alcoholism and fell out of contact with DFYS.
As
a result of Jan's non-compliance with the case plan, the
superior court in July 2002 adopted a permanency plan of
adoption.
The court's order stated that Jan had “not
made substantial progress to remedy her conduct or the conditions
in the home which caused the child to be a
child in need of aid.”
Referring to Gilbert, it added, “The
Indian custodian is incarcerated and is not likely to be
released in the foreseeable future.”
DFYS
social worker Kimberly Uhrich developed a new case plan in
October 2002, which Jan signed.
This plan had similar elements to the 2000 plan but
included adoption as a concurrent goal.
Jan had to be hospitalized for an inhalant overdose in
October 2002, after which Uhrich arranged for Jan to be
admitted to an inpatient treatment program in Fairbanks.
Jan left that program after a week.
Belinda was adopted by a tribally-approved family in October 2005.
B.
Proceedings
The
division filed a termination petition against both parents on August
28, 2002.
Judge Gleason heard evidence against Henry T., Belinda's father, on
Feburary 13, 2003, and ordered his parental rights terminated-*585 effective February 13-in an order of November 10, 2003.
At trial, social worker Kim Uhrich testified that efforts to locate Henry had been
utterly unsuccessful and that further efforts had no likelihood of
finding him.
At
the trial setting conference on March 12, 2003 the court
noted that Gilbert's “rights
as an Indian custodian”
were unclear and ordered briefing on the matter.
No briefing appears in the record.
Though he continued to participate in the proceedings, Gilbert was
never referred to as the “Indian
custodian”
again.
His attorney noted at trial that he was unsure whether
Gilbert could make any stipulations regarding Belinda “since
the petition ...
is against the daughter.”
The state's attorney stated his belief that the court could
enter an order on Belinda's status “without
the grandfather.”
The
superior court held a trial on termination of Jan's parental
rights on May 20 and 27, 2003.
Gilbert participated telephonically in the proceedings (as he was incarcerated
at the time) and was represented by court-appointed counsel.
The court issued an order on the termination petition on
July 18, 2003, holding that (1) DFYS had demonstrated by
clear and convincing evidence that Belinda was a child in
need of aid under AS 47.10.011(10) and that Jan had
failed to remedy the conditions that caused Belinda to be
in need of aid;FN7 (2)
that the division had proved by a preponderance of the
evidence that active efforts to prevent the breakup of the
family had been made, at least through May 2003; FN8 and
(3) that termination of Jan's parental rights was in Belinda's
best interests.FN9
FN7. See AS 47.10.088(a)(1);
CINA
Rule 18(c)(1)(A).
FN8.See former CINA Rule 18(c)(2).
FN9.See AS 47.10.088(c).
The
court ruled, however, that the division had not established beyond
a reasonable doubt that placing Belinda in Jan's custody was
likely to result in serious physical or emotional damage.
The court was concerned that the state's expert, Dr. Richard
Lazur, had not interviewed Jan or Belinda and that he
had discounted the bond between Jan and Belinda, given “uncontradicted”
testimony that “[Belinda]
loves Ms. [M.] and would very much like for Ms.
[M.] to remain in her life.”
The court deferred the petition for ninety days.
The
court heard additional evidence on November 19, 2003 which satisfied
its earlier concerns.
The court issued oral findings on November 21, 2003 and
a written order on January 28, 2004 terminating Jan's parental
rights effective November 21, 2003.
The court's termination order incorporated the findings issued after the
first termination hearing.
The order found that “the
state has proved beyond a reasonable doubt ...
that continued custody of [Belinda] by [Jan M.] or [Gilbert
M.] is likely to result in serious emotional or physical
damage to [Belinda].”
The court also held that the state had demonstrated active
efforts for the May 2003-November 2003 period and that “it
remains contrary to [Belinda]'s welfare to be returned to the
custody of her mother or her Indian custodian.”
Belinda
was adopted on October 28, 2005.
The adoption decree found that the adoptive parents “wish
to maintain the child's continued contact with her Alaska Native
Culture”
and that they “have
demonstrated a willingness and ability to maintain the child's contact
with her grandfather.”
In the adoption hearing Gilbert requested that the court order
“visitation
as permitted under AS 25.23.103(c) of no less than one
personal visit or one fifteen minute phone call per month.”
The superior court held that the adoptive parents “shall
have the sole discretion to determine the frequency and circumstances
of visitation that are reasonable and in the child's best
interests.
It is not necessary and it is not in the child's best interests to enter
a specific order defining the terms of visitation in the
adoption decree.”
(Emphasis
in original.)
Gilbert
and the Chitina Village both initially appealed the termination of
Jan's rights;
the
village had intervened in the custody proceedings as provided by
ICWA.FN10 Jan did *586 not appeal the termination.
Gilbert's and Chitina's appeals were stayed pending tribal approval of
the adoptive placement;
Gilbert's
appointed counsel reported that “it
appears likely that [Belinda]'s adoption by the tribally preferred parents
will moot the appeal issues of both [Chitina] and [Gilbert].”
Indeed, after Belinda was placed with her adoptive parents, Chitina
abandoned its appeal, which we dismissed sua
sponte for want of prosecution.
Chitina is participating in this case as an appellee.
FN10. See 25 U.S.C. §
1911(c)
(2000) (“In
any State court proceeding for the foster care placement of,
or termination of parental rights to, an Indian child, ...
the Indian child's tribe shall have a right to intervene
at any point in the proceeding.”).
Gilbert
appeals from the termination order.
He argues that the United States Constitution requires that the
state prove all elements of its termination case-including whether the
state made active efforts to prevent the breakup of his
family-by clear and convincing evidence, and thus that the superior
court erred when it evaluated the state's efforts under a
preponderance standard.
Gilbert argues that the state's efforts would not meet this
heightened evidentiary burden.
Second, Gilbert argues that the superior court erred in crediting
the state's expert and in not requiring that the state
present testimony from an expert on tribal childrearing practices.
Finally, Gilbert challenges the superior court's finding that placing Belinda
with him would result in harm to Belinda.
III.
STANDARD
OF REVIEW
[1][2]
We
review factual findings of the trial court for clear error,
which exists when “our
review of the record leaves us with the definite and
firm conviction that the superior court has made a mistake.”FN11 Whether
the state has complied with the active efforts requirement of
ICWA is a mixed question of law and fact.FN12 We
use our independent judgment in deciding questions of law, adopting
“the
rule of law that is most persuasive in light of
precedent, reason, and policy.” FN13 It
is a question of law whether the superior court's findings
are consistent with child-in-need-of-aid rules and statutes.FN14 Threshold
questions such as mootness, standing, and ripeness-as matters of judicial
policy-are all questions of law. FN15 We
may affirm the superior court on any basis supported by
the record, even if that basis was not considered by
the court below or advanced by any party.FN16
FN11. D.M.
v. State, Div. of Family & Youth Servs., 995 P.2d 205, 207-08 (Alaska 2000).
FN12.N.A.
v. State, Dept. of Family & Youth Servs., 19 P.3d 597, 600-01 (Alaska 2001); A.A.
v. State, Dept. of Family & Youth Servs., 982 P.2d 256, 259 (Alaska 1999).
FN13.Guin
v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).
FN14.Jeff
A.C., Jr. v. State, 117 P.3d 697, 702 (Alaska 2005).
FN15.Akpik
v. State, Office of Mgmt. & Budget, 115 P.3d 532, 534 (Alaska 2005); Ulmer
v. Alaska Rest. & Beverage Ass'n, 33 P.3d 773, 776 (Alaska 2001).
FN16.Sopko
v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1269 (Alaska 2001).
IV.
DISCUSSION
A.
Gilbert
Does Not Have Standing To Appeal the Termination.
[3][4]
Before
we consider the merits of Gilbert's appeal we must determine
whether he has standing to bring the appeal.
The “basic
requirement”
for standing in Alaska courts “is
adversity.” FN17 The
“plaintiff
must have an interest adversely affected by the conduct complained
of.” FN18 This
requirement is sometimes referred to as the “interest-injury”
test. FN19 “Standing
in our state courts is not a constitutional doctrine;
rather,
it is a rule of judicial self-restraint based on the
principle that courts should not resolve abstract questions or issue
advisory opinions.” FN20 Neither
the interest nor the injury asserted need be great;
“an
identifiable trifle is enough for standing to fight out a
question of principle.” FN21
FN17. Trustees
for Alaska v. State, 736 P.2d 324, 327 (Alaska 1987).
FN18.Id.
FN19.Id.
FN20.Id.
FN21.Wagstaff
v. Superior Court, Family Court Div., 535 P.2d 1220, 1225 n. 7 (Alaska 1975) (quoting Kenneth
Culp Davis, Standing:
Taxpayers
and Others, 35 U. Chi. L.Rev.. 601, 613 (1968)).
*587 1.
Gilbert
does not have standing to assert Jan's rights.
[5]
We
have not fully aired the question of the circumstances in
which a party may raise the rights of a third
person.
In Peterson
v. Ek,FN22 a breach of contract suit, we noted that Peterson lacked
standing to assert the claim of a third party who
had loaned supplies to Peterson and which Ek appropriated.FN23 Peterson
alleged that Ek misappropriated “an
anchor, line, and chain”
that Peterson's friend Greg Dockery had loaned to Peterson. FN24 We
noted that “[e]ven
if Ek did misappropriate these items, Peterson does not have
standing to assert the claim of a third party.” FN25 We
cited to the following passage from Moore
v. State: “Standing
questions are limited to whether the litigant is a ‘proper
party to request an adjudication of a particular issue and
not whether the issue itself is justiciable.’
” FN26 We
have also held that a party generally does not have
standing to assert the federal constitutional rights of another. FN27 We
have, however, “allowed
third party standing where a special relationship exists between the
plaintiff and the third party.” FN28 Parents,
for example, may assert the rights of their minor children.FN29 No
such special relationship exists between Gilbert and Jan. Gilbert is
Jan's father, but she is not a minor and there
has been no allegation that Jan is unable to assert
her rights.
She has instead chosen not to assert them.
FN22.
93
P.3d 458 (Alaska 2004).
FN23.Id. at 464 n. 10.
FN24.Id.
FN25.Id.
FN26.Moore
v. State, 553 P.2d 8, 23-24 n. 25 (Alaska 1976) (quoting Flast
v. Cohen, 392 U.S. 83, 100-01, 88 S.Ct. 1942, 20 L.Ed.2d 947
(1968)). See
also Scammon
Bay Ass'n, Inc. v. Ulak, 126 P.3d 138, 142-43 (Alaska 2005) (citing Graham
v. City of Anchorage, 364 P.2d 57, 59 (Alaska 1961)) (failed intervenor has standing
only to appeal denial of intervention); Austin
v. Fulton Ins. Co., 498 P.2d 702, 705 (Alaska 1972) (insurer could not appeal
from summary judgment granted to insurance agent against insured).
FN27.Falcon
v. Alaska Pub. Offices Comm'n, 570 P.2d 469, 475 n. 20 (Alaska 1977).
A party may, however, assert another's constitutional rights if the
other is unable. Cf. Barrows
v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 97 L.Ed. 1586
(1953).
FN28.State
ex rel. Dep'ts of Transp. & Labor v. Enserch Alaska
Const., Inc., 787 P.2d 624, 630 n. 9 (Alaska 1989).
FN29.Bonjour
v. Bonjour, 592 P.2d 1233, 1241 n. 15 (Alaska 1979).
Gilbert
argues that he has standing because he was allowed to
intervene in the proceedings below and because the court below
issued findings declaring that continuing custody with Gilbert would cause
harm to Belinda.
Aside from these findings, Gilbert has no interest directly affected
by the termination.
As the state argues, “his
claims belong to [Jan].”
Gilbert claims that his “relationship
with the child was severed”
by the termination order, but that is not the case.
Gilbert retains some visitation rights subject to the discretion of
the adoptive parents.FN30 The
court took the relationship between Gilbert and Belinda into account,
expressing concern that a previous foster family “unilaterally
cut off ...
contact between Mr. [M.] and his granddaughter.”
FN30. Cf. Troxel
v. Granville, 530 U.S. 57, 66-67, 120 S.Ct. 2054, 147 L.Ed.2d 49
(2000) (imposing grandparent visitation against wishes of parents violates parents'
liberty interest in care and upbringing of their children).
Furthermore,
Gilbert's participation in the proceedings below was based chiefly on
his status as Belinda's grandfather rather than as her Indian
custodian.
His rights, if any, as Indian custodian were not at
issue in the proceeding.
The court did not feel that Gilbert had enough at
stake to be entitled to participate personally, and allowed him
to participate only telephonically, stating “I'm
not inclined to sign a transport order”
in response to the suggestion that he attend in person.
At the March 12, 2003 trial setting conference, the court
noted that Gilbert's “rights
as an Indian custodian”
were unclear and ordered briefing on the matter.
Gilbert was never referred to as the “Indian
custodian”
again and no briefing appears in the *588 record.
His attorney noted at trial that he was unsure whether
Gilbert could make any stipulations regarding Belinda “since
the petition
...
is against the daughter.”
Gilbert's rights were not changed by the termination proceeding and
he has no basis to challenge the termination of Jan's
rights.
2.
ICWA
does not grant Gilbert standing.
[6]
Gilbert
also argues that ICWA grants him standing.
Section
1911(c) of ICWA provides:
“In
any State court proceeding for the foster care placement of,
or termination of parental rights to, an Indian child, the
Indian custodian of the child and the Indian child's tribe
shall have a right to intervene at any point in
the proceeding.”
If Gilbert is Belinda's Indian custodian, then it seems he
would have a right to appeal the termination.
As we explain below, however, since his incarceration Gilbert no
longer has any basis to claim to be Belinda's Indian
custodian;
also,
the superior court never found him to be the Indian
custodian even before he was incarcerated.
Gilbert thus is not granted standing to appeal by ICWA.FN31
FN31.
Section
1914 of ICWA provides that “any
...
Indian custodian from whose custody [an Indian] child was removed
...
may petition any court of competent jurisdiction to invalidate such
action upon a showing that such action violated any provision
of sections 1911, 1912, and 1913 of this title.”
25
U.S.C. §
1914
(2000).
Gilbert argues that his appeal may be considered a petition
under section 1914.
As we explain below, however, Gilbert's Indian custodian status, if
any, has been mooted by his incarceration, as has any
basis for a petition under section 1914.
We thus decline to consider whether an appeal of an
ICWA termination proceeding may properly be considered a section 1914
petition.
Two
additional factors provide support for our decision to decline to
reach the substantive issues of Gilbert's appeal.
First is the best interests of the child.
Belinda is nine years old and has just been adopted
by a tribally-approved family who “wish
to maintain the child's continued contact with her Alaska Native
Culture”
and who “have
demonstrated a willingness and ability to maintain the child's contact
with her grandfather.”
To upset this adoption on the basis of Gilbert's complaints
would not be in Belinda's best interests because it would
return her to legal limbo and could shatter the stability
she has finally achieved.
Moreover,
Chitina acknowledges that reaching the merits of Gilbert's challenges to
the standard of proof and the adequacy of expert testimony
would result in an advisory opinion.
It characterizes the appeal as raising “two
important issues of significance for future cases”
and argues that the “unique
circumstances of this case mandate”
that our decision would “be
applied prospectively only.”
A decision that would have no effect on the parties
before the court is purely advisory and therefore the appeal
is nonjusticiable.
Since
Gilbert does not have standing to appeal the termination-whether by
virtue of his relationship to Belinda, his purported status as
an Indian custodian, or by his relationship to Jan-we decline
to consider his challenges to the termination proceeding.
B.
Gilbert's
Remaining Claims Are Moot Because of His Incarceration.
Although
Gilbert does not have standing to appeal the termination, he
does have standing to appeal rulings that directly affect his
rights.
The only issues that concern Gilbert's rights are the court's
findings that placement of Belinda with Gilbert would result in
harm to Belinda and the court's refusal, in the adoption
proceedings, to order Belinda's adoptive parents to provide for visitation
with Gilbert.
Both questions are intertwined with Gilbert's status, or lack thereof,
as Belinda's Indian custodian;
his
appeal thus implicitly asks for a restoration or imposition of
that status.
The guardian ad litem argues that these questions are moot
because Gilbert's incarceration means that he “cannot
resume caring for the child.”
Chitina appears to agree that the appeal is nonjusticiable but
asks us to rule on the substantive issues Gilbert has
raised.
[7]
We
have stated, “Under
ordinary circumstances we will refrain from deciding questions where events
have rendered the *589 legal issue moot.” FN32 A
matter is moot “if
it has lost its character as a present, live controversy,” FN33 or “if
the party bringing the action would not be entitled to
any relief even if [it] prevail[s].” FN34 In Akpik
v. State, Office of Management and Budget, for example, we held that challenges to the state's approval
of an oil drilling project were moot once the driller
had abandoned the project and the period for approving the
project had expired. FN35
FN32. Kodiak
Seafood Processors Ass'n v. State, 900 P.2d 1191, 1195 (Alaska 1995).
FN33.Akpik
v. State, Office of Mgmt. & Budget, 115 P.3d 532, 535 (Alaska 2005) (quoting Kodiak
Seafood Processors, 900 P.2d at 1195).
FN34.O'Callaghan
v. State, 920 P.2d 1387, 1388 (Alaska 1996) (quoting Maynard
v. State Farm Mut. Auto. Ins. Co., 902 P.2d 1328, 1329 n. 2 (Alaska 1995)) (challenge to ballot substitutions moot because terms of persons elected
had expired).
FN35.Akpik, 115 P.3d at 535.
[8]
Federal
law defines “Indian
custodian”
as “any
Indian person who has legal custody of an Indian child
under tribal law or custom or under State law or
to whom temporary physical care, custody and control has been
transferred by the parent of such child.”FN36 Gilbert
was never granted legal custody of Belinda by either the
tribe or the state.
The only basis for Gilbert to claim Indian custodian status
was his temporary physical custody of Belinda before his arrest
in 2000.
The court below assumed, without deciding, that Gilbert had been
Belinda's Indian custodian because Gilbert cared for Belinda before his
arrest.
Based on this assumption, the court included him in the
termination and custody proceedings.
The court never decided, though, whether Gilbert was indeed Belinda's
Indian custodian.
Regardless of whether Gilbert previously was Belinda's Indian custodian on
the basis of “temporary
physical care, custody, and control,”
he cannot now achieve that status since he will almost
certainly be incarcerated for the entirety of Belinda's minority. FN37 Indeed,
he will probably spend the rest of his life in
prison.
Thus any claim premised on restoration of Gilbert's Indian custodian
status is moot.FN38
FN36.
25
U.S.C. §
1903(6)
(2000).
FN37.
Gilbert
was convicted of fourteen felonies, eight of which are class
A felonies.
AS
11.71.020(c).
He
was sentenced to a total of twenty-five years presumptive imprisonment
on three of the A felonies.
Under AS 33.16.100(d) Gilbert must serve at least one-third of
the twenty-five years, or eight years and four months, before
becoming eligible for discretionary parole.
Additionally, Gilbert faces a sentence of six years in another
proceeding.
He has been convicted there of several class B felonies
for which a minimum of one-fourth of the sentence must
be served before eligibility for discretionary parole.
AS
33.16.100(c).
Gilbert
is thus assured of incarceration for nine years and ten
months from July 8, 2004.
Belinda turns eighteen ten years and three months from that
date.
Thus even if Gilbert is a model prisoner there is
only the slightest chance that he will be released before
Belinda reaches adulthood.
FN38.
While
we may consider the merits of a moot issue if
such consideration is in the public interest, the facts of
this case do not meet the three-prong test for the
public interest exception enumerated in Kodiak
Seafood Processors, 900 P.2d at 1196.
Gilbert's status as an Indian custodian is not likely to
be repeated, and the issues raised are not likely to
evade review.
While the concerns raised are important, they do not justify
overriding the mootness doctrine.
C.
Legislative
Action Has Changed the Standard of Proof Applicable to Active
Efforts Findings.
As
we discussed above, Gilbert does not have standing to challenge
the standard of proof the superior court used in the
termination proceeding to determine whether the state had made active
efforts to prevent the breakup of his family.
Gilbert argues that due process requires clear and convincing evidence-rather
than a preponderance of the evidence-to support a finding that
active efforts have been made.FN39 The
state, Chitina, and Belinda's guardian ad litem all agree that
clear and convincing is the proper standard.
Even though we decline to reach this challenge because Gilbert
lacks standing, we note that this challenge has been made
moot by legislative action.
FN39. See Santosky
v. Kramer, 455 U.S. 745, 766-67, 102 S.Ct. 1388, 71 L.Ed.2d 599
(1982).
*590 On May 3, 2006, while this appeal was pending, the
governor signed legislation changing the applicable standard of proof for
the active efforts finding to clear and convincing.FN40 The
legislation was made effective immediately and applied to pending cases,
such that the clear and convincing standard would apply to
Gilbert's challenge.FN41 Even
though we do not reach the merits, we note that
Gilbert's appeal may have alerted the legislature and executive of
the need to address an important issue in Alaska law.
The conduct of Gilbert's appointed counsel in this case comports
with the highest traditions of public advocacy.
FN40.
Ch.
20, §§
1-3,
11, SLA 2006.
FN41.
Ch.
20, §§
12-13,
SLA 2006.
The legislative action would cause Gilbert's constitutional challenge to be
moot.See,
e.g., Krohn
v. State, Dep't of Fish & Game, 938 P.2d 1019, 1023 (Alaska 1997) (“Repeal
of the regulations therefore moots the issues Krohn raises.”).
V.
CONCLUSION
Gilbert
does not have standing to appeal the termination of Jan's
parental rights.
The remainder of his appeal is moot because of his
incarceration.
Accordingly we AFFIRM the judgment of the superior court.
Alaska,2006.
Gilbert
M. v. State
139
P.3d 581
|
